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The Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc., et al.

IP/Entertainment Case Law Updates January 16, 2008

The district court granted the defendants’ motion for reconsideration in this right of publicity case affected by the recent enactment of California legislation (SB 771) that clarified post-mortem publicity rights for deceased actors, artists and other celebrities. (We summarized this bill on October 17, 2007.)

One issue before the court was whether SB 771 clarified existing law or created new law and could be applied retroactively. The court rejected the argument that SB 771 changed existing law. Instead, the court found that this bill clarified an ambiguity in the original legislation concerning its applicability to personalities who died before 1985. Consequently, under settled California law, the court found that “a statute that merely clarifies, rather than changes, existing law, does not operate retrospectively even if applied to transactions predating its enactment” and such a clarifying statute “may be applied to transactions predating its enactment without being considered retroactive because it is merely a statement of what the law has always been.”

The court noted that the legislative intent of the bill, the ambiguity in the original statute, and the fact that the bill was enacted in response to and within five months of a court decision affecting the post-mortem publicity rights of Marilyn Monroe all suggested that the bill clarified the original statute. In granting the motion for reconsideration, the court effectively overturned its own May 14, 2007, summary judgment decision that stripped Marilyn Monroe of her posthumous publicity rights. Had that 2007 ruling remained in place, Marilyn Monroe’s estate would have been without standing to enforce Marilyn Monroe’s posthumous right of publicity and prevent others from using the actress’ name, likeness or image on a wide array of commercial products and services.

The court also rejected the arguments that SB 771 somehow “unconstitutionally takes property from the statutorily designated heirs of a predeceased celebrity, and that it interferes with contracts” and rejected the claim that SB 771 raises any constitutional “due process concerns.”

Of significance to any potential new post-mortem publicity rights legislation in New York, the opinion went on to note that there are no “due process concerns that arise from the fact that . . . [the original California legislation] applies retroactively to celebrities who died prior to January 1, 1985” because that law did not deprive anyone of any vested property rights. That is because the personas of deceased California celebrities had no statutory protection, and thus were in the public domain (where they could be commercially exploited by anyone), prior to 1985. The same holds true today for deceased New York actors, artists, sports figures and others. The fact that such rights are in the public domain means that no one individual or entity has any legal “entitlement” to use a deceased New Yorker’s name or likeness; thus, no one has a vested property interest protected by the Fourteenth Amendment -- such as would preclude retroactive application of the posthumous right of publicity law.

Finally, the court concluded that any summary judgment decision disposing of the case would be premature, thus reserving for trial the question of Marilyn Monroe’s domicile at the time of her death and all other ancillary issues.